Editor’s Note:Robert Jackson is associate professor of law at Columbia Law School. This post was coauthored with Gabriella Wertman, member of the Columbia Law School class of 2013. Work from the Program on Corporate Governance about shareholder voting includes Private Ordering and the Proxy Access Debate by Bebchuk and Hirst; a previous post on the SEC staff’s rulings on proxy access proposals under Rule 14a-8 is available here.

In the wake of Business Roundtable v. SEC, public company shareholders and boards have, for the first time, been using Rule 14a-8 to propose, and defend against, proxy access proposals. Earlier this month, the SEC staff released a series of no-action letters addressing management requests to exclude shareholders’ proxy access proposals from the ballot. The staff has based these early rulings on their longstanding 14a-8 precedents, which were originally crafted to address proposals outside the proxy access context. The staff’s approach leaves open the possibility that management will be able to use these rules to exclude proxy access proposals in the future, endangering the viability of Rule 14a-8 as a means of facilitating private ordering in proxy access. Before next proxy season, the SEC should make clear that it will apply Rule 14a-8 in a way that will give investors a meaningful opportunity to adopt the proxy access rules that shareholders prefer.

Although the staff’s initial rulings addressed important preliminary questions raised by the use of Rule 14a-8 for facilitating proxy access, they were much more notable for their adherence to the staff’s existing precedents for evaluating shareholder proposals outside the proxy access context. This approach has convinced corporate counsel and their clients that the SEC will allow management to use these precedents to exclude proxy access proposals from the ballot. Unless the SEC reverses course, this approach will give management a systematic advantage that will prevent shareholders from adopting their preferred approach to proxy access.

Suppose, for example, that a company receives a shareholder proposal that would amend the company’s bylaws to permit a shareholder who has held 3% of the company’s stock for 3 years to nominate directors on the company’s proxy. Having received this proposal, management could then propose an amendment providing that only a shareholder owning 5% of the company’s stock for 5 years will have access to the ballot. Under existing SEC precedents, management could then exclude the shareholder’s proposal as “conflicting” with management’s own proposal. Indeed, corporate counsel have suggested that management will be able to use this approach to exclude proposals from the ballot next year.

If Rule 14a-8 is to give shareholders a meaningful opportunity to express their preferences on the rules governing shareholder access to the ballot, the SEC must recognize that its traditional approach in this area is unsuitable for proxy access proposals. In many contexts, such as proposals addressing questions of corporate social responsibility, it may well make sense for the SEC to permit the company to exclude shareholder proposals that “conflict” with management’s. But because access proposals, by definition, threaten incumbent directors’ seats on the board, allowing them to offer a “conflicting” proposal, and thereby prevent a vote on shareholders’ preferred access regime, would give management a systematic advantage in an area where their interests often conflict with shareholders’.

Giving management advantages of this kind would threaten the viability of Rule 14a-8 as a mechanism for facilitating proxy access. Before next proxy season, the SEC should make clear that its approach to shareholder access proposals under Rule 14a-8 will reflect the unique nature of those proposals, and that insiders will not be able to use traditional bases for exclusion to deny shareholders the right to choose the access regime they prefer. If, as many have suggested, the Commission instead gives management the power to set the agenda on proxy access, Rule 14a-8 is unlikely to succeed in facilitating private ordering in this important area.

Fully agreed. At least the refusal to issue a no-action letter in the case of KSW on March 7 provides some hope. From the SEC’s letter, concerning an access proposal from a ProxyExchange.org member:

“We note that KSW ha adopted a bylaw that allows a shareholder who has owned 5% or more of KSW’ s outstanding common stock to include a nomination for director in KSW’s proxy materials. Given the differences between KSW’s bylaw and the proposal, including the difference in ownership levels required for eligibility to include a shareholder nomination for director in KSW’s proxy materials, we are unable to concur
the the bylaw adopted by KSW substantially implements the proposal. Accordingly, we do not believe that KSW may omit the proposa from its proxy material in reliance on rue 14a-8(i)(10), which permits the exclusion of a proposa if a company has already substantially implemented the proposal.”

Shareowners should remember to cite this case as they are challenged next year.

ProxyExchange.org members have submitted several proxy access variations. I am confident that by next season we will have have solid language that can be fine tuned to targeted companies. In reviewing prospects this year, there seems to be many many companies where shareowners could benefit by passing such proposals.

ProxyExchange.org will be holding a West Coast conference in July near where gold was discovered in California. I think data mining and taking an active ownership role will yield far more wealth to those staking a modern day claim than what prospectors of old were able to dig or sift out with their mining techniques. Our practices will also be far more sustainable.

[…] In the 2011 case Business Roundtable v. SEC, the D.C. Circuit vacated SEC Rule 14a-11, which required corporations to include board candidates proposed by shareholders who owned 3% of the corporation’s stock for three years on the corporation’s proxy statement (what is known as a “shareholder access” rule). While the Business Roundtable decision prevented the SEC from implementing a mandatory shareholder access rule, many believed that shareholders could implement similar rules on a company-by-company basis via Rule 14a-8, which allows shareholders to include certain proposals in the corporation’s proxy materials. However, such proposals may be excluded for 13 reasons listed in Rule 14a-8(i), one of which is that the shareholder proposal conflicts with a management-sponsored proposal. As early as 2012, corporate governance scholars predicted that corporations could rely on this ground for exclusion to…. […]

[…] by management and then rejected by the SEC no-actions letters. Similarly, another scholar, Robert Jackson, worried that the SEC staff’s adherence to long-standing Rule 14a-8 precedents could give […]